Schroeder v. Lahman

• Decision Date: 06 June 1881
• Parties: SCHROEDER v LAHMAN.
• Court: Minnesota Supreme Court

28 Minn. 75

9 N.W. 173

SCHROEDERvLAHMAN.

Supreme Court of Minnesota.

Filed June 6, 1881.

Appeal from judgment of district court, Scott county.

Henry Hinds, for appellant.

H. J. Peck, for respondent.

MITCHELL, J.

This an action in ejectment. The defendant in her answer denies the title of plaintiff, and alleges title in herself. Both parties claim title under one Fogabank,-the plaintiff, under a mortgage upon the premises executed by Fogabank in 1863, and afterwards duly foreclosed, and the premises sold thereunder April 25, 1867, to plaintiff's grantor; the defendant, under a conveyance by Fogabank subsequent to the mortgage. On the seventh of April, 1868, defendant tendered to the then sheriff of the county in which the premises are situated the sum necessary to redeem from the mortgage sale. The sheriff refused to receive it. The tender was not kept good. The money was never tendered to the holder of the certificate, nor does it appear that he was ever applied to by the redemptioner to be allowed to redeem, or that she has ever asserted her right as against the sheriff to compel him to perform his official duty by executing a certificate of redemption.

The only question, therefore, in the case is whether a mere tender to the sheriff, and a refusal by him to receive the amount necessary to redeem, operates as a discharge of the lien of the holder of the certificate of sale. We are of opinion that this question must be answered in the negative. In such case the sheriff is not his agent, but merely the officer of the law with whom the redemptioner, if he sees fit, may deposit the money instead of paying it to the party to whom it belongs. No act of his can prejudice the rights of the holder of the certificate of sale. Horton v. Maffit, 14 Minn. 289;Davis v. Seymour, 16 Minn. 210;Tinkom v. Lewis, 21 Minn. 132;Gilcrist v. Comfort, 34 N. Y. 235. The only office or effect of such tender and refusal is that it will preserve and protect the right of the redemptioner to have the redemption perfected, if such right be seasonably asserted. The sheriff, being the officer of the law, and not the agent of either party, his refusal to receive the money and to execute a certificate of redemption does not destroy the redemptioner's right, if seasonably asserted, to have the redemption perfected and properly evidenced; neither does it impair the right of the holder of the certificate to the redemption money, or, failing that, to acquire absolute...